Growth of A Digital First Sale Doctrine – An Assessment of US and Indian Laws

Vasundhara Kamath S, PhD Research Scholar at NALSAR University of Law, Hyderabad

With the entire world moving towards digitization of information, the scope and applicability of different principles encompassed within copyright law have come into question. One such principle is that of Copyright Exhaustion, also referred to as the First Sale Doctrine in the US. In the light of the ReDigi case decided in 2012, the possible conflict between the interests of the owner of creative content and the legitimate buyer of such content came to light, thereby calling for a need to reconsider §106 of the US Copyright Act, 1976. Moreover, it is increasingly being realized that content owners are relying on measures that are beyond the scope of Copyright law in order to secure protection for content. The balance that Copyright law aims can be disrupted as a result.

Although the growth and interpretation of a Digital Exhaustion principle has not been subject to an institutional scrutiny in India yet, it requires serious consideration in the light of growing digitization.

This paper intends to evaluate the need for the presence of a secondary market for creative content and thereby for a Digital Exhaustion principle. It aims to explore the evolution of the First Sale Doctrine in the US and critique how the same has been applied to the digital space. Consequently, it intends to explore how an Indian legal framework can be designed, by learning from the US experience.

INTRODUCTION

Content owners have, ever since the advent of the Internet and since the alleged ‘Napsterisation’ of creative content, condemned the prevalence of illegal sharing fostered by the use of digital technology. With the rise of the computer and the Internet, an increasing number of digital products and services have been copied and distributed most of the time without the authorization of legal owners[i].

However, keeping in light the balance that copyright law aims to foster, the access to creative content to the larger public needs to be looked into more closely. With respect to the same, the prevalence of a secondary market and the possible application of the First Sale Doctrine to digital works needs to be considered.

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